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by such redemption, they do not attempt to assert a title superior to that enforced by the decree, but one in subordination to it.872 The holder of a junior mechanic's lien may redeem from a sale to foreclose a senior lien, ,673 and where property has been sold under one of two co-ordinate mechanics' liens the holder of the other lien is entitled to redeem,674 but where in a suit to foreclose a mechanic's lien various parties interplead, one claiming a vendor's lien, another a mortgage and a third a mechanic's lien, and a decree is entered ordering a sale and directing distribution of the proceeds among the complainants and the interpleaders, the sale is the sale of all, so that none of said parties, even though they obtain deficiency decrees, can redeem, since no one should be allowed to redeem from his own sale.75 A statute which provides that, upon judicial sale of land in which a wife has an inchoate interest, such interest shall vest as though the husband were dead, merely makes the wife a tenant in common with the purchaser, and does not give her the right to redeem.676 It has been held in Connecticut that, while a lienholder may redeem from prior incumbrances, he cannot compel prior incumbrancers to redeem from his lien.677

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§ 702. A property owner who owes an undisputed amount to his contractor, which amount is also claimed by subcontractors, material men, or others, may file a bill of interpleader, or bill in the nature of an interpleader, to determine to whom the debt should be paid."78 But an owner who denies that he owes any

672 Boynton v. Pierce, 49 Ill. App. 497. Where, however, a sale to foreclose a mechanic's lien is void for want of jurisdiction, judgment creditors cannot obtain any rights by redeeming from such sale. Holcomb v. Boynton, 37 N. E. 1031, 151 Ill. 294, affirming Boynton v. Holcomb, 49 Ill. App. 503.

673 Jones v. Hartsock, 42 Iowa, 147.

67 Phelps v. Pope, 6 N. W. 42, 53 Iowa, 691.

675 McCullough v. Rose, 4 Ill. App. 149.

676 Buser v. Shepard, 8 N. E. 280, 107 Ind. 417.

677 Card v. Bank, 23 Conn. 353.

678 Newhall v. Kastens, 70 Ill. 156; Board of Education of City of Atchison v. Scoville, 13 Kan. 27. It has been held in the District of Columbia that, where

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thing to the contractor has no standing to file a bill of interpleader," and a statute providing that the "owner" or any person having a mechanic's lien may file a bill to adjust the rights of all persons interested in the property, has no application to a husband who has made a contract concerning work on a house belonging to his wife. In Maryland, where subcontractors' liens are not limited to the amount due under the original contract, a bill of interpleader cannot be brought by the owner of a building against persons claiming liens for work done for and material furnished to the contractor who erected the building, to settle their respective claims to the amount still due the contractor, and to relieve the building of liability, as the holders of mechanics' liens have no concern with the state of account between the owner and the contractor, their remedy being by sale of the building. In Wisconsin, on the other hand, under a statute declaring that the owner shall not be compelled to pay a greater sum on account of the building than the stipulated price, an owner who is sued by a subcontractor may, on paying into court the amount owing from him to the principal contractor, have such contractor substituted as defendant and be himself discharged.682

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§ 703. In interpleader by the owner of a building against the contractor and a material man furnishing material to a subcontractor, and claiming a lien therefor, the fact that the subcontractor, who was not made a party, had directed the contractor to pay the bal

several separate actions are brought to enforce mechanics' liens on the same building, the owner may by bill in chancery have the prosecution of such actions enjoined, and the whole controversy settled in the chancery suit. Painter v. Drane, 2 MacArthur (D. C.) 163. And it is held in New York that in an action by a subcontractor to foreclose a mechanic's lien, based on the claim that the contractor has been fully paid in advance of the terms of his contract, the owner, though admitting that he has overpaid the contractor, and accepted the work unfinished, may make the contractor and an assignee of the contractor parties to the suit, and have their claims against such owner determined therein. Hilton Bridge Const. Co. v. New York Cent. & H. R. R. Co., 40 N. E. 86, 145 N. Y. 390, affirming 32 N. Y. Supp. 514, 84 Hun, 225.

679 Hellman v. Schneider, 75 Ill. 422.

680 McGraw v. Storke, 44 Ill. App. 311.

681 Ammendale Normal Institute v. Anderson, 17 Atl. 1030, 71 Md. 128. 682 Wagner v. McMillen, 39 N. W. 777, 72 Wis. 327.

ance due him to the material man, and as a witness in the case claimed that the money due him should be paid to the material man, does not authorize a judgment for such amount for the material man, in case his lien is not sustained, as assignee of the subcontractor.683 Where an owner of a building erected under a contract, in writing, after notice of liens served, files a bill of interpleader, and pays the money due the original contractor into court, on a decision rendered that the notices of liens were invalid, the claimants under them have no title to the fund, but it is payable to the original contractor, or one to whom he had assigned it. A court of equity in adjusting the respective rights of claimants to a fund paid into court upon interpleader will distribute the fund according to the principles of equity, rather than strictly according to the provisions of the mechanic's lien law. Thus, although a mechanic or workman performing labor, or party furnishing materials, for a subcontractor, is not entitled, under the Illinois statute, to any lien,-for the lien given does not extend further than to the subcontractor,-yet, where a court of equity acquires jurisdiction of the fund due a subcontractor, on a bill of interpleader, in which the persons performing labor or furnishing materials for the subcontractor are made parties, it is the duty of the court to adjust the equities of all parties interested in the fund, as they have an equitable claim on the fund.685

§ 704. In a case in New Jersey it appeared that some lien claimants had duly notified the owner of their claims, and thus obtained liens, while others, who had received from the contractor orders on the owner, had not so perfected their liens; and it was held that in distributing the fund on interpleader all the claimants must be treated alike, being entitled to be paid in the order in which their respective notices or orders had been presented to the owner." An assignee of part of the contract price under an assignment made before the work began is entitled, on interpleader, to be paid before subcontractors.687

683 Alderman v. Transportation Co., 33 Atl. 589, 66 Conn. 47.

684 Hall v. Baldwin, 18 Atl. 976, 45 N. J. Eq. 858.

685 Newhall v. Kastens, 70 Ill. 156.

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686 Superintendent & Trustees of Public Schools in Trenton v. Heath, 15 N. J. Eq. 22; Burnett v. Mayor, etc., 31 N. J. Eq. 341.

087 Lanigan's Adm'r v. Bradley & Currier Co., 24 Atl. 505, 50 N. J. Eq. 201.

CHAPTER XVII.

RELEASE AND DISCHARGE OF MECHANICS' LIENS.

DIVISION I.

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WAIVER.

705. In General.

706-707. Instances of Waiver.

708. Extension of Time.

709. Reducing Debt to Judgment.

710-711. Accepting Note.

712. Negotiation of Note.

713. Drafts and Orders.

714-716. Taking Collateral Security.

717. Taking Mortgage on Same Property, 718-719. Estoppel.

DIVISION II. LACHES-LIMITATIONS.

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721.

722-724.

Limitations in the Mechanic's Lien Acts.
Starting Point.

725. Computation of Time.

726-727. When is Suit Begun.

728. Parties Brought in after Suit Begun.
729. Intervening Claimants.

730-731. Negligence in Prosecution of Suit.
DIVISION III. EXPRESS RELEASE OF LIEN.
$ 732-734. In General.

DIVISION IV. PAYMENT OF LIEN DEBT.

§ 735-737. What Constitutes Payment. 738-739. Application of Payments.

740. Payments to Contractor.

741. Collusive Payments.

742. Premature Payments.

DIVISION V.

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743. Payments to Subcontractors and Workmen.

AGREEMENT NOT TO ASSERT LIEN.

744. Agreement as Waiver.

745-746. Construction of Such Agreement.

747-748. Contractor's Agreement-Effect on Subcontractors.

749. Agreement by Subcontractor.

750-751. Bord by Contractor against Liens.

752. Liability of Sureties on Contractor's Bond.

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DIVISION VI. DISCHARGE BY FILING OWNERS' BOND.

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§ 705. Having considered the method of enforcing mechanics' liens, there remains the question of how such liens may be released or extinguished. This may be either by the act or omission of the lien claimant, as by waiver, laches, or formal discharge, or by act of the owner, as by payment, recording the contract, or filing bond. These various methods of extinguishing the lien will be separately considered, and first we will take up the subject of waiver.

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The right to assert a mechanic's lien may be waived, and such waiver may be inferred from the course of dealing between the parties. Whether a lien is waived is largely a matter of intention; 2 and, in order to establish a waiver, the intention to waive must clearly appear. A general agent or manager in charge of a corporation's lumber yard, selling for cash or on credit, as he deems best, has implied authority to waive a mechanic's lien for lumber sold by him from such yard; but a contractor has no authority to waive the lien of a subcontractor.5

1 Iron Co. v. Murray, 38 Ohio St. 323.

2 Pope v. Graham, 44 Tex. 196.

3 Peck v. Bridwell, 10 Mo. App. 524.

4 White Lake Lumber Co. v. Stone, 27 N. W. 395, 19 Neb. 402; Badger Lumber Co. v. Ballentine, 54 Mo. App. 172.

5 Green v. Williams, 21 S. W. 520, 92 Tenn. 220; Nixon v. Cydon Lodge (Kan. Sup.) 43 Pac. 236. But where a contractor, who was responsible for the erection and completion of certain buildings, according to terms agreed upon, failed to fulfill his contract, without any excuse, and gave a release, not under seal, of all claims for mechanics' liens, it was held that neither he nor his subcontractors were entitled to mechanics' liens. Whitcomb v. Eustace, 6 Ill. App. 574.

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